SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
co-operation usually leads to a facilitation of prosecution, the procedural costs imposed on the perpetrator may be lower. 6.3 Self-Disclosure Procedures See 6.2 Voluntary Disclosure Incentives . 6.4 Protections Afforded to Whistle- Blowers Currently, there is no specific Swiss law grant - ing protection to whistle-blowers in the private sector. The competent courts decide on a case-by-case basis whether the reporting of irregularities is legitimate. Swiss courts apply a balancing of interests test to assess whether the employee’s notification of an irregularity to the employer, the authorities or the media was lawful and exam - ine the facts of each individual case (primarily in relation to the employee’s duty of loyalty). However, it is regarded as best practice to have reporting mechanisms in place that adequately protect the whistle-blower from negative conse - quences. The termination of an employee solely on the grounds of lodging a complaint may con - stitute an unfair dismissal under Swiss law. In the public sector, under the relevant cantonal or federal Personnel Acts, Swiss officials may be required to report crimes and offences to their supervisors or directly to the criminal authorities. The EU Whistleblowing Directive The Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (commonly known as the “EU Whistleblowing Directive”) entered into force in December 2019, and EU member states were required to implement the requirements result - ing from the EU Whistleblowing Directive into
national law by December 2021. As Switzerland is not an EU member state, there is no obligation to implement the EU Whistleblowing Directive into national law. Nevertheless, Swiss compa - nies with business branches in the EU, which have at least 50 employees, may fall within the scope of the EU Whistleblowing Directive. Com - pliance with the requirements of the EU Whistle - blowing Directive can therefore also be of great importance to Swiss companies. 6.5 Incentives Provided to Whistle- Blowers There are no specific incentives for whistle-blow - ers to report bribery or corruption in Switzerland. In practice, many corporations have established mechanisms for employees to report suspected or actual misconduct to an independent per - son, and corporations sometimes encourage or oblige employees to report suspicions of brib - ery to the compliance department, an exter - nal lawyer or a specific whistle-blower portal. Upon such reporting, an employer may choose to waive its right to take civil action against the reporter, even if said reporter is involved in the bribery or corruption. An employer’s waiver, however, does not protect the employee from prosecution by the criminal authorities. For the public sector, the Swiss Federal Audit Office (SFAO) maintains a whistle-blowing website where private individuals and federal employees can report suspected irregularities and acts of corruption within the administrative units of the Federal Administration.
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